Fain v. Fain

• Citation: 6 S.W.2d 403
• Decision Date: 18 April 1928
• Docket Number: (No. 9111.)
• Parties: FAIN v. FAIN.
• Court: Court of Appeals of Texas

6 S.W.2d 403

FAIN v. FAIN.

(No. 9111.)

Court of Civil Appeals of Texas. Galveston.

April 18, 1928.

Rehearing Denied May 10, 1928.

Error from District Court, Harris County; Ewing Boyd, Judge.

Suit by Venustina G. Fain against Jesse C. Fain and another, in which named defendant asserted a cross-action. Judgment for plaintiff, and defendant named brings error. Affirmed.

Carothers & Brown, of Houston, for plaintiff in error.

Huggins, Kayser & Liddell, of Houston, for defendant in error.

GRAVES, J.

With the wife as the initiator, and each spouse not only denying the other's charges of cruel treatment, but preferring individual ones as a predicate for separate affirmative relief, this action was one for divorce, custody, of their 4 year old daughter, and adjustment of property rights, between Mr. and Mrs. Fain. Mrs. Fain further sought the cancellation of certain instruments alleged to affect her separate property, which she averred had been procured from her by fraud and without consideration of any sort, making W. S. Weaver a party upon that feature, upon allegations of his participation therein.

Following a verdict on special issues, Mrs. Fain's cross-action was denied, much enumerated personalty, as being the only community property owned by the husband and wife, was ordered partitioned through commissioners, and a divorce, with exclusive custody of the child, was granted to Mrs. Fain; this additional relief affecting the remaining property being awarded in her favor:

(1) That she recover, free from any community claim on his part, the homestead at Webster, Tex., the outstanding and jointly signed purchase-money notes against it to become her separate obligation, with provision for the subrogation of Mr. Fain to the lien of the holder thereof, should he be compelled to pay any part of this indebtedness, except as to such payments as he might make thereon out of the income derived from a certain oil development contract affecting their lands in Mexico of November 16, 1921, between the heirs of her deceased father, as first parties, and the Mexican Petroleum Company et al., as second parties.

(2) After recitation to the effect that these five instruments had been executed by the parties thereto on the several dates thereof, as well as recorded in the appropriate records of Harris County, Texas, and were then in the registry of the court, pursuant to its prior order to that effect (1) a general power of attorney from Mrs. Fain to Mr. Fain of December 15, 1920, (2) a 99-year lease and sale from Mrs. Fain to Mr. Fain of 120 hectares of land in Mexico of April 20, 1921, (3) an oil lease on 20 acres of this 120 from Mr. Fain to Jensen & Jensen of October 27, 1921, and on December 28, 1921, conveyed back to him by them for a recited consideration of $1, (4) a declaration of trust creating an association known as "Standard Royalties of Mexico, Limited," etc., from Mr. and Mrs. Fain and W. S. Weaver of April 26, 1921, (5) a conveyance from Mr. and Mrs. Fain of a one-sixteenth of all the mineral rights in a certain hacienda in Mexico, known as the Cierro Viego, to themselves and W. S. Weaver as trustees for this association named "Standard Royalties," etc., of April 26, 1921, the decree proceeds:

"It is further the judgment of the court, and it is so ordered, that said instruments be impounded and committed to the custody of the clerk of this court, and that they (defendants) be enjoined from recording, registering, or attempting to record or register, the same or any copies thereof.

"It is the further judgment of the court that, as between the plaintiff and both of the defendants, all of the certificates of stock of the Standard Royalties of Mexico, Limited, which have been issued either to the plaintiff or the defendants, and which are now standing in either the name of the plaintiff or the defendants, as well as any unissued stock, be and the same are hereby declared to be the separate personal property of the plaintiff, and the defendants and each of them are hereby perpetually enjoined from asserting any claim of them, are hereby perpetually enjoined from asserting any claim under or by virtue thereof, or from interfering with the plaintiff in her control, possession, and authority with respect thereof, and that the stock certificates now in evidence in this case and now in the registry of the court, be and the same are hereby delivered to the plaintiff.

"With respect to the said contract executed by the plaintiff and her husband, Jesse C. Fain, and the other heirs of Gabriel A. Gorrechotegui, as parties of the first part, and the Mexican Petroleum Company el Aguila, Inc., and the Tuxpan Petroleum Company, as second parties, dated November 16, 1921, it is the judgment of the court, and the court finds and adjudges, that said contract and the proceeds thereof, due and to become due, are the separate property of the plaintiff.

"And it is further ordered and decreed that the defendant, Jesse C. Fain, be, and he is hereby, enjoined from exercising or attempting to exercise any right, ownership, or control over the same, and from interfering with the plaintiff in her exclusive right, ownership, and control thereof."

Mr. Fain, through this writ of error, has appealed from the judgment so rendered below except as to that part making disposition of the community property, very ably presenting here, among others, these main contentions:

(1) The judgment was erroneous in all those provisions described and quoted from under paragraph 2 above, because: (a) A Texas court has no jurisdiction or authority to cancel an instrument conveying lands in Mexico or to render a decree affecting the title to such lands, or to decree that an instrument conveying lands in Mexico has no legal effect as a conveyance, or to adjudicate between conflicting claimants the legal effect of an instrument affecting the title to such lands; that a decree impounding in the registry of the court an instrument affecting lands and enjoining a defendant from exercising control, ownership, or authority over the lands by virtue of the instrument, in effect cancels the instrument so far as the defendant is concerned; that, where the ground on which an instrument is sought to be canceled is that its execution was induced by fraud or duress, and where the court finds that the plaintiff has not shown any fraud or duress in the execution of the instrument, the relief sought cannot be granted, and, where no ground is shown for practically destroying the legal effect of an instrument, it should not be destroyed; that, where the pleadings allege fraud or duress in general terms without setting up the facts constituting the fraud or duress, they are insufficient to raise any such issue; and that in this case no fraud or duress was shown." (b) The "Standard Royalties of Mexico, Limited," etc., created under the declaration of trust of April 26, 1921, was not a party to this suit, directly or through its trustees as such, and, since the evidence showed there were shareholders thereof who were not before the court, neither their interests nor its assets could be practically disposed of without their having had their day in court, as the judgment in effect did, the instruments vesting such interests not having been shown to be invalid or ineffective under either the pleadings or proof. (c) There was no basis in the pleadings or proof for the vesting of separate ownership in Mrs. Fain of all the Standard Royalties stock, since it was not so allegated, and the evidence conclusively showed the contrary.

(2) The court should not have so decreed the Webster, Tex., homestead property to Mrs. Fain, because, not only was the jury's finding under special issue A, that the husband and wife intended it to be the latter's separate property when receiving the deed thereto against the evidence, but it was also shown to the contrary that the consideration, boh contemporaneously with and after the execution of the deed, was paid out of their community funds; there being further no pleadings authorizing a trial of the title to the property between the two.

(3) The verdict of the jury in response to special issues IV and V was contrary to the evidence, as well as to the overwhelming preponderance of the testimony, in that it was undisputably shown that the Webster property was improved both by having been planted in figs and by repairs made on the houses.

(4) It was error to hold the income resulting during the marriage, as well as that to so come in the future, from the contract of November 16, 1921, to be the separate property of Mrs. Fain, because that accruing during the marriage was conclusively presumed to belong to the community, there being nothing shown to the contrary, while that to accrue in futuro was not properly involved in the suit.

(5) The court's instructions in connection with special issue No. 1 were neither authorized by the pleadings nor supported by the proof.

(6) The verdict of the jury under, and the award of the exclusive custody of the child following, special issue VI, was not justified by the evidence.

(7) The jury's verdict upon its face, especially in the answers to...